The United States Government has filed evidence from Australian whistleblower Frederick Gulson in its multi-billion-dollar lawsuit against the major tobacco companies.

An affidavit by Mr Gulson, a former secretary and legal counsel in Australia of WD & HO Wills, was filed in the District Court of Columbia last month by US Government lawyers seeking confidential documents from the Brown and Williamson cigarette company.

Brown and Williamson and Wills (now defunct) come under the umbrella of British American Tobacco (BAT).

However, Mr Gulson's allegations about destruction of sensitive documents will not be raised in the hearing by the High Court in Melbourne tomorrow on the Rolah McCabe case.

BAT was last year ordered to pay $700,000 damages to Mrs McCabe, who died of lung cancer, but the Victorian Court of Appeal later overturned the ruling.

Mr Gulson's evidence, revealed by The Age in July, will not be part of the McCabe family's application for leave to appeal the latest decision to the High Court, because it was not part of the original trial.

The US Government's lawyers used the affidavit in support of a motion to force Brown and Williamson to turn over documents the company claimed as legally privileged. One of the grounds of the application is that privilege does not apply if documents "further a crime, fraud or other misconduct".

The motion filed with the court says Brown and Williamson "has perpetrated a fraud upon the court by engaging in a pattern of using attorneys to hide documents for discovery in litigation".

In April last year in the Victorian Supreme Court, Mr Justice Eames found that document destruction by BAT had denied Mrs McCabe the chance of a fair trial.

The appeal judges ruled the judge's findings against BAT and its lawyers went too far.

At tomorrow's hearing, lawyers for Mrs McCabe will ask the High Court to hear a full appeal of the Court of Appeal's decision.

They contend the appeal judges had limited the Supreme Court's powers to protect its processes, were wrong to rule out evidence BAT claimed was protected by legal privilege, and had gone too far in reversing Justice Eames's findings of fact.

The Victorian Government will seek to support the leave to appeal, with Solicitor-General Pamela Tate arguing Mr Gulson's evidence raised the issue of the appropriate test for what constituted a lawyer's breach of duty to the court.

In a separate move, it is believed the NSW legal services commissioner has reopened an investigation into lawyers from the firm Clayton Utz who advised BAT on its document policy.

Assistant commissioner Lynda Muston confirmed the office had spoken to Mr Gulson. The legal services commissioner has the power to coerce people to give evidence and it is believed it will use this power on Mr Gulson.

Legislation prevents the office from publicly revealing its investigations. It is believed the commissioner closed an inquiry into the behaviour of Clayton Utz lawyers after the Court of Appeal overturned the Supreme Court's decision in favour of Mrs McCabe.